Last month, the US Department of Justice (DOJ) released a 198-page heavily redacted report (.pdf; 3.9MB) on the US Federal Bureau of Investigation’s (FBI) use of national security letters (NSLs). National security letters were created by the US government in the 1970s as exceptions to privacy law, allowing the FBI to secretly review records of suspected spies. The George W. Bush administration used the USA Patriot Act to broadly expand the use of NSLs to include surveillance of those not suspected of being terrorists or spies. In 2005, the year Bush left office, the FBI issued more than 30,000 NSLs and the trend shows no sign of lessening.
National security letters are used to secretly and warrantlessly gather information on US citizens’ confidential financial information and communications with no judicial oversight at all. They are thought to be widely used specifically because they don’t require prior court approval. All that’s needed is a certification by an FBI field office that the information sought is relevant to a counterterrorism investigation. Exigency letters are used to subvert the minimally restrictive process of obtaining official NSL authorization.
In March 2013, US District Judge Susan Illston found NSLs to be unconstitutional.
Within the bowels of the DOJ report — covering 2007-09 — is the revelation that NSLs have been used to secretly obtain information on journalists and that they can be similarly used in the future on the grounds of catching government leakers. The conditions under which NSLs can be used to obtain information on journalists is classified; entire blocks of the report related to obtaining information on journalists are redacted, making it mostly unreadable; certainly undecipherable. For example, here’s a passage from page 179 of the report, the FBI’s response to obtaining a journalist’s information with an NSL under 28 C.F.R. § 50.10:
“Shortly after the issuance of our Exigent Letters Report, the FBI and the Department stated their intention to review current policies and procedures governing [redacted]. When the FBI reissued the DIOG in October 2011, the FBI incorporated specific procedures for [redacted]. These procedures require: ([redacted]. Further, in a circumstance where the [redacted] during the course [redacted], the procedures require that the FBI obtain the approval of the Attorney General pursuant to 28 C.F.R. § 50.10.”
28 C.F.R. § 50.10 is a specific section of part of the order issued by US Attorney General Eric Holder on 21 February 2014 that supposedly — but not really — tightens the conditions under which the DOJ could secretly obtain information on journalists. The short version: the DOJ can still use NSLs on journalists just about whenever they like. Specifically, 28 C.F.R. § 50.10 is intended to strike a balance between national security, public safety, effective law enforcement, and the First Amendment. Presumably, in that order.
US Attorney General Erich Holder’s AG Order No. 3420-2014, Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media.
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DOJ releases useless NSL report was originally published by ARTS & FARCES internet on Wednesday, 17 September 2014 at 6:37 AM CDT. Copyright © ARTS & FARCES LLC. All rights reserved. | ISSN: 1535-8119 | OCLC: 48219498 | Digital fingerprint: 974a89ee1284e6e92dd256bbfbef3751 (64.237.45.114)